Jamie John Gowdy v Yasin Leysan

Amended pursuant to Rule 50 Adverse possession of registered land – Whether Applicant entitled to make the application - Whether Applicant can show ten year’s possession by himself and his successors in title – Whether intention to possess – Schedule 6 para 5 –First Condition -Whether Equity by Estoppel- Whether binding on Respondent-How equity to be satisfied- Third Condition Cases referred to: Nielson v. Poole (1969) 20 P&CR 909 Powell v McFarlane (1977) 38 P and CR 452 Prudential Assurance Co Ltd v. Waterloo Real Estate Inc [1999] 2 EGLR 85 at 87 Joyce v. Rigolli [2004] EWCA Civ 79 Yeates v. Line [2013] Ch 363 Guest v. Guest [2022] UKSC 27 Megarry and Wade The Law of Real Property Ruoff and Roper Registered Land

1. The Applicant, Mr Gowdy made an application to HM Land Registry in Form ADV1 under s. 97 and paragraph 1 of Schedule 6 to the Land Registration Act 2002 to be registered as proprietor of part of title number DY5791. Mr Gowdy is the registered proprietor of DY120392, being 6 Bramley Road, Doe Lea, near Chesterfield. The Respondent, Mr Leysan is the registered proprietor of DY5791, being 5 Bramley Road. He has objected to the application on the grounds that Mr Gowdy cannot show ten year’s adverse possession and he has also required the application to be dealt with under paragraph 5 of Schedule 6. Mr Gowdy claims to have met the conditions in each of paragraphs 5(2), 5(3) and 5(4). The matter was referred to the Tribunal for determination.

2. Both 5 and 6 Bramley Road are on the north side of Bramley Road and adjoin on their north sides Mansfield Road. 5 Bramley Road is to the east of 6 Bramley Road. The properties are accessed from Bramley Road. The house at 6 Bramley Road was formerly attached on its northeast side to a house which stood on 5 Bramley Road. Though the front of the house at 6 Bramley Road is parallel to the road, the front of 5 Bramley Road ran at an angle to Bramley Road. This meant that no part of the house at 5 Bramley Road was in front of the windows in the southeast wall of 6 Bramley Road. The house on 5 Bramley Road was demolished because of subsidence in 2005 by its then owner, Bolsover District Council (“the Council”). Following the demolition, the Council built a supporting wall with buttresses along the flank of 6 Bramley Road where it had adjoined the demolished house. The site of 5 Bramley Road remained empty and unused. In the spring of 2024, the Council sold it by auction to Mr Leysan for £20,000. Mr Leysan has planning permission to build a detached house on the site.

3. I visited the site accompanied by the parties and the Applicant’s legal representatives on the afternoon before the hearing. The house at 6 Bramley Road is set back about some 6 or so metres from the road. A pebble-dashed wall runs across the Bramley Road frontage of 6 Bramley Road with a pedestrian gateway towards the centre of the wall, to give access to the front door. There is a pillar at the eastern end of the wall. A wooden fence running along the frontage of 5 Bramley Road adjoins the eastern side of the pillar. From the north side of the pillar a fence comprised of concrete posts and wooden panels runs to a point about 1 metre to the east of the southern point of the supporting wall built by the Council in 2005. At that point there is a metal gate about 180cm tall, hung on brackets on the side wall of the house just to the north of the southernmost of the two supporting buttresses built by the Council. The gate closes against a metal post adjoining the fence. From that point, the fence turns to run parallel with the side wall of the house at 6 Bramley Road and at a distance of about 1 metre from it. At a point adjacent to the north end of the wall, the fence runs to the Mansfield Road boundary. The land behind the house at 6 Bramley Road slopes down towards Mansfield Road and the fence panels step down accordingly. The fence panels are about 60cm taller than the top of the posts by which they are supported. Where the fence runs alongside the side of the house and for about 3 panels further to the north, the panels sit on two rows of concrete gravel boards. At the time I visited there were a number of building items (such as roof tiles and a stone fire surround) and garden items (such as empty plant pots) in the area between the fence and the flank wall of the house. The surface of this area is covered by a single strip of paving slabs and a bed of gravel between the slabs and the wall of the house. 5 Bramley Road is currently an empty site but some work on foundations for a building have been started.

4. The land the subject of Mr Gowdy’s application is a strip about a metre wide adjoining the west side of the fence from the frontage with Bramley Road to the south corner of the northeast wall of the house at 6 Bramley Road and then turning to run parallel with the wall of 6 Bramley Road. From a point adjacent to the north end of the flank wall of the house, the area claimed narrows to a point over a distance of about half the length of the rear garden of 6 Bramley Road. Date of the Application

5. The HM Land Registry Case Summary says that the application was made in a form ADV1 dated 2 nd September 2024. The copy ADV1 in the bundle is dated 2 nd September 2024. It was accompanied by a statement of truth in form ST1 dated 2 nd September 2024. The date HM Land Registry gave in the Case Summary to the application is the 3 rd October 2024. That is the date on which the application was received by HM Land Registry and entered on the Day List.

6. The immediate background to the application is as follows. On 30 th August 2024 Mr Gowdy’s solicitors sent a letter of claim to Mr Leysan complaining that he had trespassed by putting paint on the fence and requiring Mr Leysan by 13 th September 2024 to sign and return a form undertaking not to enter onto Mr Gowdy’s land. Mr Leysan replied on 2 nd September 2024 stating that the fence was trespassing onto his land and that the boundary was a shown on the Land Registry title plans.

7. Mr Leysan brought proceedings in the County Court at Chesterfield by a claim form issued on 25 th September 2024. The Particulars of Claim attached to the Claim Form asked for an order that Mr Gowdy give Mr Leysan possession of the Disputed Land. The statement of truth on the claim form is dated 20 th September 2024. Mr Gowdy filed a Defence and Counterclaim on 4 th October 2024. At paragraph 19.3 Mr Gowdy pleaded that he had made an application to HM Land Registry for possessory title to the Disputed Land but he did not plead the date of that application.

8. Paragraph 1 of Schedule 6 to the Land Registration Act 2002 provides as follows: “ 1(1) A person may apply to the registrar to be registered as the proprietor of a registered estate in land if he has been in adverse possession of the estate for the period of ten years ending on the date of the application. (3) However, a person may not make an application under this paragraph if— (a) he is a defendant in proceedings which involve asserting a right to possession of the land, or (b) judgment for possession of the land has been given against him in the last two years.”

9. Mr Leysan submits that Mr Gowdy was as at 2 nd October 2024 a defendant in proceedings which involved asserting a right to possession of the land and so he was not then entitled to make an application under Schedule 6 of the 2002 Act .

10. The Applicant’s solicitors produced a letter dated 9 th September 2024 from them to HM Land Registry headed “Registration – Adverse Possession: Property: land at 6 Bramley Road, Bramley Vale, S44 5PW Our Client: Gowdy”. The letter begins “We enclose our client’s application for Adverse Possession of the above Property”. The content of the letter is consistent with the enclosed application being one relating to the Disputed Land. However, HM Land Registry informed the Tribunal that the application was sent to it under cover of a letter dated 12 th September 2024 and provided a copy of that letter. That letter refers to Mr Gowdy’s “application for registration with possessory title to the strip abutting his property” but does not state that the application is enclosed.

11. Whether the application was sent under cover of a letter dated 9 th September or a letter dated 12 th September 2024, it is clear that the application was received by HM Land Registry on 23 rd September 2024. Mr Leysan produced to the Tribunal a Property Alert notification he received from HM Land Registry on 23 rd September 2024 stating that an application had been lodged by Mr Gowdy’s solicitors by post on 23 rd September 2024 at 15.15. The Applicant’s solicitors produced an email they received on 23 rd September 2024 from Mr Leysan, in which he stated, “The land registry alerted me to the adverse possession claim you made against my title, … I will now issued a possession claim to every inch he fenced off after he bought theproperty”. HM Land Registry informed the Tribunal that the application was received on 23 rd September 2024 and continued “Unfortunately, our post room erroneously captured the application as a dealing affecting the whole of the title, whereas it should have been captured as a transfer of part application. This was an error by HM Land Registry. The original application on our system was therefore cancelled on 3 rd October 2024 and the correct type of application was recaptured on the same date”.

12. Mr Leysan has submitted that the application received by HM Land Registry on 23 rd September 2024 was not the application that has been referred to the Tribunal and is before me. I have no reason to doubt the explanation given by HM Land Registry. I am satisfied that the application before me was received by HM Land Registry on 23 rd September 2024. I find that the date on which Mr Gowdy “made” the application was 23 rd September 2024 being the date on which it was received by HM Land Registry. As Mr Gowdy was not on that date a party to proceedings in which a right to possession of the Disputed Land was asserted and no judgment for possession had been given against him, he was entitled to make the application on 23 rd September 2024 and he did so on that date. Background and Documentary Evidence

13. Mr and Mrs Terence Hancock purchased 6 Bramley Road from Bolsover Council in 1984. I shall refer to them as Mr and Mrs Hancock respectively. Title was transferred to them by a transfer dated 21st May 1984. 6 Bramley Road was conveyed together with “all rights of way support drainage watercourse access and other rights in the nature of easements now or usually enjoyed by or in respect of the property over or through or from all or any other lands”. It was also conveyed together with “the right for the transferee and other owners and occupiers for the time being of the property to use for all reasonable purposes in common with the owners and occupiers of other lands and premises the roads paths passageways pipes conduits drains and sewers thereon or thereunder”.

14. By clause 7(c) of the 1984 Transfer, the parties agreed that the main walls separating the house or buildings on the property from those on the adjoining land and lands of the Council were party walls. The wall between the houses at 6 Bramley Road and 5 Bramley Road was thus a party wall.

15. Both Mr and Mrs Hancock died in 2018. Mr Hancock died on 4 th May 2018, surviving his wife by only eight weeks. Evidence about what happened around the time of the demolition of 5 Bramley Road is provided by some contemporaneous documentation and the evidence of the late Mr and Mrs Hancock’s son, Mr Roger Kevin Hancock (to whom I shall refer as “Roger Hancock”).

16. Mr Hancock wrote to the Council on 1 st June 2014 raising concerns about structural problems at 5 Bramley Road and requesting remedial work be started as soon as possible. On the 7 th January 2005 the planning department of the Council wrote to the occupier of 6 Bramley Road to give notice of receipt of an application from the Council for permission to demolish 5 Bramley Road. From a manuscript note made by Mr Hancock it appears that the demolition started on 13 th June 2005 and was completed on 24 th June 2005. The building work on 6 Bramley Road was due to start on 27 th June 2005.

17. On 14 th December 2005 Mr Hancock wrote to Mr R Wood, an officer of the Council. The letter was headed “Ref: - Boundary fence at above location”. The body of the letter reads “Please find enclosed the paid invoice from Rainworth Fencing Manufacturers. The project is now completed and the workmanship is, in my opinion, of an acceptable standard. I am very grateful for your contribution of half the cost as agreed. Please feel free to call and inspect the work at your convenience in order that you can feel assured that the job has been done to your complete satisfaction”. On 19th April 2006 Mr Hancock wrote to Mr Wood concerning the internal decoration of 6 Bramley Road, enclosing an estimate for redecoration of the inside of 6 Bramley Road as requested by Mr Wood. Mr Hancock stated that the “demolition, building and redecoration project” was nearing completion and he invited Mr Wood to call to inspect the work.

18. Also in evidence is a copy of an undated letter from Mr Hancock. The name of the addressee is not written on the copy but from the contents of the letter, it would seem that the letter was addressed to the Council. The letter reads (so far as material) as follows: “The above property that is owned by my wife and I has recently undergone considerable remedial reconstruction as a result of the attached dwelling owned by the Council being demolished. We have had to make a large financial investment in the structure and refurbishment of our own house in the past to address the same problems that have resulted in the Council’s radical decision to demolish the attached house. …. In establishing the new boundaries of my house and the adjoining land I have become concerned as to the future use and purpose of the plot. I know that a main drain to the village passes through the ground. This may jeopardise future building permission being granted for a new dwelling. The location of the original semi- detached house being on the top of the hill has in the past prevented the Council, for safety reasons, from permitting a garage to be built or to allow off street parking to this house (No 5) on the brow of the hill. With this history of limited development and my concerns as to the future use and maintenance of this small plot of ground, I should respectfully request that you contact me to discuss possible alternative use, responsibility, maintenance and possible ownership”. No reply to this letter is in evidence.

19. On 9 th August 2006 the planning department of the Council received an application from the Council for planning permission to build a residential unit at 5 Bramley Road, described on the application as “land adjacent to 6 Bramley Road”. The existing use of the land the subject of the application was described in box 7 as “vacant- residential”. The application was accompanied by a site plan dated 31 st July 2006. The site is shown edged red. The red edging is drawn such that it excludes the Disputed Land.

20. A planning officer prepared a report on 19 th September 2006 on the Council’s application. She noted that there was a 1.2m high fence on the western boundary. Sale by the Executors

21. Following the death of Mr Hancock, 6 Bramley Road was put on the market by the executors, Colin, Kevin and Barry Hancock. The executors obtained a grant of probate to Mr Hancock’s estate on 12 th November 2018. The property was offered for sale with vacant possession.

22. All three executors signed the completed Law Society Property Information Form. In answer to the question in box 1.1, the executors ticked the box to say the boundary on the right of the property as viewed from the street was owned by the seller. In answer to the question in box 1.3, the executors ticked the box to say they were not aware of any boundary feature having been moved in the last 20 years. In addition, Mr Leysan referred to the following further parts of the form: (1) the question in box 1.2, “if the boundaries are irregular, please indicate ownership by written description or by reference to a plan” and the answer, “Hedges at rear maintained by County Council Highways Access from A617 Main Road”; (2) the question in box 2.2, “is the seller aware of anything which might lead to a dispute about the property or a property nearby. If yes, please give details” and the ticking of the answer box “No” (3) the question in box 8.2, “Does the property benefit from any rights or arrangements over any neigbouring property? If yes, please give details” and the ticking of the answer box, “No”.

23. The sale to Mr Gowdy was completed by a transfer dated 21 st June 2019. The transfer in form TR1 gave the title number of the property as DY120392 and described in box 2 the property transferred as “Property: 6 Bramley Road, Bramley Vale, Derbyshire S44 5 PW”. Mr Gowdy was registered as proprietor of title number DY120392 on 19 th July 2019. Grass Cutting Records

24. Mr Leysan produced some grass-cutting records from the archives of the Council. They record “one-off cuts” at 5 Bramley Road on 15 th July 2016, 12 th June 2017, 19 th June 2018 and as scheduled for 16 th July 2019. The two plans produced with the records show coloured green as “open areas” 5 Bramley Road and extending to what appears to be drawn as the flank wall of 6 Bramley Road. In other words, the plans appear to include as part of 5 Bramley Road the Disputed Land. Sale of 5 Bramley Road

25. The Council marketed 5 Bramley Road for sale in October 2023. It was offered for sale by auction on 19 th December 2023 with a guide price of £20,000 but did not sell at the auction. Mr Leysan purchased it after the auction for £20,000.

26. After talking with Mr Leysan on the site, Mr Gowdy and his partner, Ms McDonnell wrote to the Council on 10 th January 2024 asking for it to be made clear to the purchaser before completion of the sale that the land sold was only that running up to the fence. Mr Roger Owen FRCS, senior valuer at the Council, replied to Mr Gowdy and Ms McDonnell on 18 th January 2024 stating, “The boundaries to the land are clear on the ground and the gable elevation to your property is around a metre outside of the plot sold”. Mr Leysan wrote to MrGowdy on the same day proposing three options; either, the fence was relocated to run along the wall of 6 Bramley Road or Mr Gowdy buy the land between the wall and the fence from Mr Leysan or the dispute be referred to a boundary surveyor or, in default of agreement, the court.

27. Mr Owen confirmed to Mr Gowdy’s solicitors on 24 th May 2024 that the land sold by the Council extended only to the fence. However, the Council subsequently changed its mind about what it had sold. On 21 st October 2024 the Council wrote to Mr Leysan saying that the Council accepted the plan to the transfer to Mr Leysan showed as included in the sale all land up to the party wall. Witness Evidence

28. Roger Hancock gave evidence, confirming the contents of his witness statements made on 6 th November 2024 and 4 th June 2025. Mr Roger Hancock was born in 1959. At the time of the demolition of 5 Bramley Road Roger Hancock was living in Boston, Lincolnshire. He visited his parents at 6 Bramley Road once or twice a week. He said that in about July 2005 the Council’s contractors, Baggaley and Jenkins constructed the strengthened gable end structure of his parent’s property and also constructed a paved pathway immediately abutting the gable end structure to provide access down the east side of 6 Bramley Road. He said that following consultation between his parents and the Council it was agreed that a new boundary fence would be erected between 5 and 6 Bramley Road, adjacent to the pathway. His parents arranged for locally based contractors, Rainsworth Fencing to instal the fence, which comprised concrete posts with connecting palisade lattice panels. The fence was erected in about July 2005. The Council agreed to pay half the cost of erecting the fence. Roger Hancock said that it was agreed between his parents and the Council that the fence would be the boundary structure between the two properties, with his parents owning what lay on their side of the fence. He said that had there been any suggestion or indication to his parents that they would not be entitled to the land up to and including where the fence is located, they would never have arranged for the erection of the fence or incurred half the cost of erecting it.

29. Roger Hancock said that from the time of its creation, the pathway along the east side of 6 Bramley Road was routinely used by his parents and visitors as access from the front to the rear garden. Mr Hancock used the area for storage of garden equipment and Mrs Hancock stored pots there. For added security, Mr Hancock installed a metal gate at the entrance to the pathway at the front of the house at 6 Bramley Road. On the day of the hearing, Roger Hancock produced a quotation from Aspire Gates Ltd addressed to Mr and Mrs Hancock for the supply and installation of 1 set of bow top entrance gates, 2 pedestrian gates and 1 side entrance gate. The quotation is dated 31 st July 2003. Written in manuscript on it is “paid in full” above a signature and the date 10 th January 2004. Mr Kevin Hancock said that the side entrance gate referred to in the quotation was the one fitted at the south end of the path along the northeast wall of the house at Number 6. He said that his parents had purchased the gate in 2004 and then kept it in storage until it was fitted in 2005. From the time of erection of the fence and the installation of the gate, his parents enjoyed exclusive occupation of the Disputed Land and at no time did anyone raise any objection to that.

30. In cross-examination, Roger Hancock said that prior to the demolition of 5 Bramley Road, his father had fencing erected all around his property by Rainworth Fencing. After the demolition, he wanted the new fence to match. As that fence cost more than the Council wanted to pay, his father agreed with the Council that each would pay half the cost. He denied that the letter dated 14 th December 2005 his father wrote to the Council could have been referring to a fence along some different place and not the fence erected after the demolition of the house at 5 Bramley Road.

31. Roger Hancock was cross-examined about the answers he gave to preliminary enquiries before contract on the sale of 6 Bramley Road to Mr Gowdy. He said that the answer he gave to question 1.3 “Is the seller aware of any boundary feature having been moved in the last twenty years?” was wrong. He should have answered “yes” because he was aware of the fence on the side with 5 Bramley Road being erected in a different position after the demolition of the house at 5 Bramley Road.

32. Mr Gowdy gave evidence that at the time he purchased 6 Bramley Road there was a fence comprising concrete posts and timber panels along the line of the existing fence. He said that when he bought 6 Bramley Road, he believed that the fence defined the boundary. It was not until the Council produced the marketing material for the sale of 5 Bramley Road that he discovered there was any issue about the location of the boundary. Even then he was reassured by the Council’s officer, Mr Owen who assured him that only the land up to the fence was to be sold.

33. Mr Gowdy said that in order to make a more secure fence to keep in his dogs, he put taller fence panels in place of the then existing panels but using the same fence posts. The new panels are 5’ tall whereas the previous panels were about 3 or 4’ tall. The metal gate across the southern end of the area beside the gable end wall of the house at 6 Bramley Road was in place when Mr Gowdy bought 6 Bramley Road. He had not erected it.

34. Ms Elizabeth McDonnell is Mr Gowdy’s partner. She lives with him at 6 Bramley Road. Ms McDonnell confirmed the evidence Mr Gowdy gave. Asked in cross-examination about the height of the fence when she first viewed 6 Bramley Road, Ms McDonnell said that it came to about hip height. The gate at the southeast corner of the house was about 6’ tall. The gate was in place when she first went to view the property in January 2019. Ms McDonnell pointed out that if the gate is open, it cannot be seen from the road because it ia hidden behind the buttress.

35. A number of other witnesses gave evidence about the fence. Mr Graham Fuller has been a postman since January 2004. Routinely between 2004 and 2009 he delivered mail on the Bramley Vale/ Glapwell Hill round and that had been his permanent round since November 2009. He recalled the demolition of 5 Bramley Road in 2005 and the erection then of a fence. He said that the fence erected in 2005 was in situ when Mr Gowdy purchased 6 Bramley Road in 2019. He said that the fence today comprises the original fence posts and gravel boards. The only change that had been made was the fitting of taller fence panels.

36. Jane Mitchell has lived at 16 Cambridge Crescent for the past 35 years. Her home is on the corner of Bramley Road and Cambridge Crescent and just across the road from 6 and 5 Bramley Road. She recollected the demolition of 5 Bramley Road and that Mr and Mrs Hancock arranged for the erection of a fence with a walkway between the fence and the gable end wall of 6 Bramley Road with a metal gate at the end of the walkway towards the front of the house. She said that the concrete posts are the originals and the fence is now in the same position as when it was constructed on the instructions of Mr and Mrs Hancock.

37. In cross-examination, Ms Mitchell said that she could not date when the fence was erected but said it was around about 2005.

38. Mr Peter Gardner lives at 3 Bramley Road. He is 65 years old and has lived in Bramley village all his life. He recalled the demolition of 5 Bramley Road and that shortly after the demolition, Mr and Mrs Hancock arranged for the construction of a boundary fence comprising concrete posts and wooden panels with a pathway constructed between the fence and the gable wall of the house at 6 Bramley Road. He said the existing fence is in the same position as the fence Mr and Mrs Hancock had erected. The posts are the same but the wooden panels are taller than the originals.

39. In cross-examination, Mr Gardner said that he could not put a year on when the fence was erected. He thought the fence was between about 3 and 4 feet high but he did not take much notice of the height. He had never measured it. The fence had a single gravel board. The fence is now larger because the panels are larger. He had seen the Council cut the grass on the Number 5 site but had never seen the Council cut the grass at Number 6.

40. Maria Knowles has lived in Bramley Road for a number of years. She said that the boundary fence and walkway lying between the fence and the gable end of 6 Bramley Road were in situ at the time she moved into 7 Bramley Road. She said that the late Mr Hancock used the walkway to tend his front and rear gardens and that he used to walk around the outside of his house to keep active. He was a keen gardener and stood plant pots on the pathway between the fence and the gable end. Mr Gowdy and his partner increased the height of the wooden panels of the fence but the concrete posts are the originals and are in the same position.

41. In cross-examination, Ms Knowles said that she left Bramley Vale in 1996 and moved back in 2009. Photographic Evidence

42. A number of photographs were in evidence. They include a Google Streetmap photograph dated May 2009 (pages 119 of the hearing bundle). This photograph when magnified (p. 119A of the hearing bundle), shows clearly to the front of 6 Bramley Road a fence along the line of the existing fence and the arch-topped gate between the corner of the house at 6 Bramley Road and the fence. The fence panels are about 3 feet high. The gate cannot be seen in a photograph of 6 Bramley Road taken from Bramley Road and looking square-on to the street frontage of the house and forming part of the marketing materials on the occasion of the sale to Mr Gowdy. Date of erection of the fence and gate

43. Mr Leysan did not accept that the fence was erected in 2005. He suggested the letter from Mr Hancock to the Council dated 14 th December 2005 referred to a different fence. Mr Leysan said that the fence was erected in 2006. His reason for so saying is the text of a letter Mr Hancock wrote to the Council, which was received by the Council on 22nd August 2006. The letter was written following receipt of notice of the Council’s application for planning permission to build on the site of 5 Bramley Road. In the letter Mr Hancock asked for “a copy of a site plan with the proposed location of the construction and Boundaries”. Mr Leysan’s point appeared to be that Mr Hancock would not have asked for a plan of “boundaries” if the fence had been erected. A fence had certainly been erected by 19 th September 2006. That is the date of the planning application report written by a planning officer of the Council, considering the Council’s application for planning permission to build on 5 Bramley Road. That report describes the site as having “1.2m high fence on west side”. I do not read Mr Hancock’s letter as being in any way inconsistent with the fence having been erected before the letter was written. He was just asking for a copy of the plan showing the boundaries that had been submitted as part of the planning application. There is no reason to think the fence was put up between 22 nd August 2006 and 19 th September 2006.

44. Mr Leysan did not accept that the gate across the southern end of the strip was erected before Mr Gowdy purchased 6 Bramley Road. He said that the gate was not visible in the photograph of the front of the house in the sales particulars of 2019.

45. I am wholly satisfied that the fence and gate were erected in 2005, following the demolition of the house at 5 Bramley Road. On the balance of probabilities, the letter Mr Hancock wrote to the Council in December 2005 refers to the fence in question. The house at 5 Bramley Road was demolished in 2005 bringing about the need for a new fence to be erected. I accept Roger Hancock’s evidence about how and when the fence and gate were erected. There is nothing at all to support Mr Leysan’s suggestion that the letter of December 2005 refers to some fence in a different position. Mr Hancock’s letter to the Council in 2006 asked for information about the future use of 5 Bramley Road. I do not consider that it indicates the fence had not been erected by the time the letter was written. I also accepted Roger Hancock’s evidence that a paved path adjoining the gable end of 6 Bramley Road was constructed by the Council’s contractors in 2005. The gate is plainly visible in the Google Streetmap photograph taken in 2009. This clearly shows that Mr Leysan’s submission that a gate was not erected until after Mr Gowdy acquired 6 Bramley Road, is wrong. Reason for Erection of the Fence

46. The fence was put up at the joint expense of the Council and Mr and Mrs Hancock in order to provide a boundary between 6 Bramley Road and 5 Bramley Road. I accept the evidence of Kevin Hancock that the Council’s contractors constructed a pathway along the side of the new flank wall of 6 Bramley Road and that the path was to give access from the front of 6 Bramley Road to the rear. I cannot see how the path could have been for the benefit of 5 Bramley Road. I accept Kevin Hancock’s evidence, that the Council agreed to pay and paid half the cost of erection of the fence. That is supported by Mr Hancock’s letter to the Council of 15 th December 2005. I accept Mr Kevin Hancock’s evidence that Mr and Mrs Hancock and the Council agreed the fence should be the new boundary structure. Boundary Agreement

47. In what might appear to be somewhat surprising at first blush given that the application before the Tribunal was an application by Mr Gowdy under Schedule 6, Counsel for Mr Gowdy submitted that Mr Gowdy need not rely on Schedule 6 because the Disputed Land was part of the land within his registered title as the result of what he submitted was a boundary agreement made between Mr and Mrs Hancock and the Council in 2005. On this submission, Mr Gowdy’s application should be dismissed.

48. The law relating to boundary agreements is discussed in the judgment of Megarry J. in Nielson v. Poole (1969) 20 P&CR 909. The learned judge found that the plaintiff and the defendant’s predecessor had agreed that the boundary should be along a particular line (which happened to be the line defined by the true construction of the relevant conveyance). The issue then was whether the boundary agreement was registrable as a Class C(iv) land charge under the Land Charges Act 1925 . Megarry J. said that the answer depended on which type of boundary agreement it was. His Lordship stated at p. 918: “Now a boundary agreement may constitute a contract to convey land. The parties may agree that in return for a concession by A in one place, straightening the line of division, B will make a concession in another place; and the agreement may thus be one for the conveyance of land. But there is another type of boundary agreement. This does no more than identify on the ground what the documents describe in words or delineate on plans. Nothing is transferred, at any rate consciously; the agreement is to identify and not to convey. In such a case, I do not see how the agreement can be said to constitute a contract to convey land”. His Lordship went on to say that in cases of uncertainty a boundary agreement would be presumed not to convey land: “There may, of course, be cases in which it is uncertain or doubtful whether a boundary agreement will convey any land. Thus, the configuration of the boundary may suggest that land will be conveyed, without demonstrating this beyond doubt. In such a case I would hold the agreement is not registrable. Clause C(iv) applies to a “contract … to convey” and not to a contract which leaves it uncertain whether or not any land is to be conveyed. In short, in my judgment, a boundary agreement is presumed not to convey land; the presumption may be rebutted, but unless it is, the agreement is not registrable; and to point to circumstances of doubt or uncertainty is not to rebut the presumption”. His Lordship continued at p. 920 “In my judgment, no boundary agreement should be held to be registrable unless it can be seen with reasonable clarity to be an agreement to convey”.

49. This is a case in which there was no uncertainty about the position of the boundary. Prior to the demolition of the house at 5 Bramley Road, the boundary ran through the party wall between the two semi-detached houses. Following the demolition, the line of the boundary remained clear. The fence was not erected along the line of the party wall and so was clearly not on the boundary. It would seem therefore clear that the agreement between the Council and Mr and Mrs Hancock was without doubt an agreement to convey land and the presumption is rebutted. However, counsel for Mr Gowdy referred me to other authorities, which he said showed the agreement was not one requiring writing under s. 2 of the 1989 Act.

50. Joyce v. Rigolli [2004] EWCA Civ 79 is a case in which the Court of Appeal considered the construction of s. 2(1) of the 1989 Act. The Court of Appeal found that the boundary could not be ascertained from the title plans and that the parties had made an agreement to demarcate the boundary. The agreement did not purport to be a contract to convey any land from one party to the other. At para. 31 Arden LJ said “For a contract to be one “for” selling or disposing of land, it must have been part of the parties’ purpose, or the purpose to be attributed to them, in entering into such a contract, that the contract should achieve a sale or other disposition of land”. At para 32, Her Ladyship continued: “I do not consider Parliament, which after all enacted section 2 against the background of Nielson v. Poole , could have intended s. 2 to apply to transfers of land pursuant to boundary agreements of Megarry J’s latter type (“demarcating” agreements) simply because a trivial transfer or transfers of land were consciously involved”. Her Ladyship added at para 33 “It is to be presumed until the contrary is shown that any transfer or transfers of land affected by a boundary agreement of the demarcating kind is trivial for this purpose”.

51. Yeates v. Line [2013] Ch 363 concerned an agreement to compromise. The Court held that the agreement was not one required by s. 2(1) to be in writing. At para 29 the Court said: “In my view Joyce v. Rigolli is binding authority for the proposition that an oral demarcation agreement, that is an agreement to demarcate an unclear boundary described in title documents or delineated on a plan, is not void by virtue of s. 2(1) of the 1989 Act even though the agreement has a disposing effect, because the words “a contract for …” in s. 2(1) refer to an agreement which has a disposing purpose”. His Lordship continued at para 30: “In my view, therefore Arden LJ [in Joyce v. Rigolli] was of the opinion that a demarcation agreement which has a disposing effect does not fall foul of s. 2(1) unless it has a disposing purpose and more than a trivial amount of land is disposed of. It is clear Sir Martin Nourse was of the same opinion”.

52. The agreement in this case was not an agreement to demarcate an unclear boundary. The boundary was not unclear. It was clearly at the centre line of the former party wall between the two houses. The agreement was to give Mr and Mrs Hancock a piece of land on the Council’s side of the boundary line, providing a path between the front and rear of 6 Bramley Road. It was therefore an agreement that had a disposing purpose. As it was not a demarcation agreement, the presumption that the transfer of land was trivial does not arise. Though the area of land disposed of was not large, I do not consider it to be trivial. It is an area of practical value to the owners and occupiers of 6 Bramley Road. It provides access for the repair and maintenance of the flank wall of the house and of the roof. It provides a means of access to the rear garden. It provides an area that can be used for storage. Further, it is an area that Mr Leysan as owner of 5 Bramley Road thinks is of value to the development of his plot.

53. I find that the agreement between Mr and Mrs Hancock and the Council was an agreement for the disposal of land and as such required to be in writing under s. 2(1) of the 1989 Act. It follows that it is void because it was not made in writing. I therefore reject the submission made on behalf of Mr Gowdy that the Disputed Land is (and was at the date of his application under Schedule 6) included within his registered title. Schedule 6

54. Under paragraph 1 of Schedule 6 to the Land Registration Act 2002 a person may apply (provided the application is made at a time when the applicant is not a defendant to proceedings which involve asserting a right to possession of the land) to be registered as proprietor of a registered estate in land if he has been in possession of the estate for the period of ten years ending on the date of the application. Possession comprises two elements: (1) A sufficient degree of physical custody and control (“factual possession”); and (2) An intention to exercise such custody and control on one’s own behalf and for one’s own benefit (“intention to possess”). “What is crucial is to understand that, without the requisite intention in law there can be no possession. Such intention may be, and frequently is, deduced from the physical acts themselves.” (ibid paragraph 40).

55. Factual possession has been described as follows: “It signifies an appropriate degree of physical control. It must be a single and [exclusive] possession…Thus an owner of land and a person intruding on that land without his consent cannot both be in possession of the land at the same time. The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed …Everything must depend on the particular circumstances, but broadly, I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no one else has done so.” per Slade J in Powell v McFarlane (1977) 38 P and CR 452 at pp. 470-471, cited at paragraph 41 in J A Pye (Oxford) v Graham .

56. What is required for the intention to possess is the intention to exclude the whole world, including the true owner of the paper title, from the land so far as is reasonably practicable and so far as the processes of the law will allow – see per Slade J. in Powell v. McFarlane above. The intention must not only be the subjective intention of the squatter but the squatter must also show by his outward conduct that he has such an intention. The intention must be manifested by unequivocal action – see Prudential Assurance Co ltd v. Waterloo Real Estate Inc [1999] 2 EGLR 85 at 87. The use of the land must be such that the true owner, if he took the trouble to be aware of what was happening on his land, would know that the squatter was in possession. Peter Gibson LJ in Prudential Assurance Co Ltd v. Waterloo Real Estate Inc [1999] 2 EGLR 85 said at 87. “It would plainly be unjust for the paper owner to be deprived of his land where the claimant had not by his conduct made clear to the worlds including the paper owner, if present at the land, for the requisite period that he was intending to possess the land” – Possession of the Disputed Land

57. Mr and Mrs Hancock were in possession of the land on the 6 Bramley Road side of the fence from the time the fence was erected until they died. Once the fence had been erected, they had factual possession of the land. It was then within the curtilage of their home and was used as part of their home. The existence of the fence and the gate demonstrated to the world at large that Mr and Mrs Hancock intended to possess the land to the exclusion of all others including the Council.

58. I do not accept Mr Leysan’s submission that the Council’s grass-mowing records show that the Council entered onto the Disputed Land and did works on it. The Disputed Land was fenced off from 5 Bramley Road at the times to which the grass cutting records relate. There was no grass on that land. It was a path or part of a path, covered in part with gravel and in part with paving slabs. Mr Leysan’s assertion that the Council “always had uninterrupted access” to the Disputed Land is not supported by evidence. I am satisfied that the grass-mowing records produced by Mr Leysan relate to land on the 5 Bramley Road side of the fence and not to the Disputed Land.

59. Mr Leysan submitted that following the death of Mr Hancock, the executors were not in possession of the Disputed Land. He bases this submission on the facts that the executors did not physically reside at 6 Bramley Road and sold 6 Bramley Road with vacant possession. I do not accept that submission. The executors were not in residential occupation of 6 Bramley Road but that does not mean that they were not in possession of 6 Bramley Road and of the Disputed Land. They had exclusive physical control of 6 Bramley Road and the Disputed Land. They had the keys to 6 Bramley Road and control of the Disputed Land because it was fenced within the curtilage of 6 Bramley Road. The retention of the gate and fencing demonstrated to the world at large that the executors intended to possess the Disputed Land. The fact that land is sold with vacant possession does not mean the land is not in the possession of the vendors up until completion of the sale. It means only that the vendors agree to give vacant possession upon completion of the sale, i.e. that no-one will be in possession at the time of completion.

60. Following Mr Gowdy’s purchase of 6 Bramley Road, he took possession of 6 Bramley Road and the Disputed Land. I have found that the fence was erected in 2005. Mr Gowdy changed some panels but he did not change the position of the fence on the ground.

61. It follows that for a period of ten years prior to the application, Mr Gowdy and his predecessors in title were in possession of the Disputed Land. Mr Leysan submitted, as set out in his Statement of Case that Mr Gowdy could not add the period of possession by his predecessors to his own period of possession in order to establish the period of ten years possession for the purposes of Schedule 6.

62. Schedule 6 paragraph 11(2) provides that a person is to be regarded as having been in adverse possession of an estate in land for the purposes of Schedule 6 “where he is the successor in title to an estate in the land, during any period of adverse possession by a predecessor in title to that estate”.

63. Mr and Mrs Hancock acquired an “estate” in the Disputed Land by going into adverse possession of it. The executors became the successors in title to that estate on the death of Mr Hancock because all his property vested in them on his death. The grant of probate to the executors enabled them to demonstrate their title to that estate. The question then arises whether Mr Gowdy became the successor in title to the estate held by the executors in the Disputed Land.

64. The editors of Ruoff and Roper: Registered Land at 33.019 state: “when an application is made under the Schedule 6 procedure by a successor in title of the previous squatter, the application will need to be supported by evidence of a conveyance of the previous squatter’s unregistered fee simple title in the land to the successor”. Later in paragraph 33.019 the editors state “The terms of the conveyance may be explicit, as in the case of an express conveyance of the squatter’s fee simple. However, it is also arguable that such a conveyance may be implicit. Thus, for example, a transfer of a registered estate may contain an express conveyance of the transferor’s unregistered fee simple, as a squatter, in adjoining registered land. In the absence of an express conveyance, a conveyance may nevertheless be implicit from the terms of the transfer; for example if the adjoining land forms part of the curtilage of the registered estate being transferred and that estate was defined in the transfer by reference to a postal address which prima facie encompassed the adjoining land, and the transfer contained no provisions to rebut the inference of an implied conveyance. In this regard, it is to be noted that the Law of Property Act 1925 s. 55 (c ) provides that the requirement of writing imposed by s. 53 with respect to the creation or disposition of an interest in land, does not affect the right to acquire an interest in land by virtue of taking possession”.

65. I agree that the conveyance of the estate in the adversely possessed land need not be explicit but may be implicit. I find here that the transfer by the executors included an implied conveyance of the Disputed Land. The description of the property transferred was “Bramley Road, Bramley Vale, Derbyshire S44 5PW”. The Disputed Land was fenced in as part of the curtilage of 6 Bramley Road and was part of the property known by the postal address as set out in the transfer. There is nothing in the transfer to indicate that the Disputed Land was excluded and no reason appears from the transfer to conclude that the executors wanted to exclude the Disputed Land. Schedule 6 paragraph 5

66. Mr Leysan gave notice requiring Mr Gowdy’s application to be dealt with under paragraph 5 of Schedule 6. That means that Mr Gowdy’s application can only succeed if one of the three conditions set out in paragraph 5 is met. Mr Gowdy indicated in his application that he intended to rely on each of the three conditions. However, in closing submissions, counsel for Mr Gowdy sought to rely only on the first and third conditions. The First Condition

67. The first condition is that (a) it would be unconscionable because of an equity by estoppel for the registered proprietor to seek to dispossess the applicant, and (b) the circumstances are such that the applicant ought to be registered as proprietor.

68. A general description of the essential elements of proprietary estoppel is helpfully set out in Megarry and Wade The Law of Real Property at 15-001 as follows “(i) An equity by estoppel arises where; (a) the owner of land (O) induces, encourages or allows the claimant (C) to believe that C has or will enjoy some right or benefit over O’s property, provided that inducement etc is not specifically limited to a mere personal use of the land; (b) in reliance upon this belief, C acts to his or her detriment to the reasonably determined knowledge of O; and (c) O then seeks to take unconscionable advantage of C by denying C the right or benefit which C expected to receive. (ii) This equity gives C the right to go to court to seek relief. C’s claimis an equitable one and subject to the normal principles governing equitable remedies. (iii) The court has a wide discretion as to the manner in which it will satisfy the equity in order to avoid an unconscionable result, having regard to all the circumstances of the case, including, but not limited to, the expectations and conduct of the parties. (iv) The relief which the court may give may be either negative , in the form of an order restraining O from asserting his or her legal rights, or positive, by ordering O either to grant or to convey to C some estate, right or interest in or over the land, to pay C an appropriate amount in money, or to act in some other way. (v) The issue in any given case is whether it would be unconscionable for O to deny that which O has allowed or encouraged C to assume to C’s detriment”.

69. The first question is then whether the Council induced encouraged or allowed Mr and Mrs Hancock to believe that the Disputed Land was theirs. The Council agreed the position of the fence and agreed that the fence was a boundary fence. It thereby induced Mr and Mrs Hancock to believe that the Disputed Land was theirs.

70. The second question is whether Mr and Mrs Hancock acted to their detriment in reliance on that belief. They did so by paying ½ of the cost of erecting the fence in the agreed location and then erecting a gate across the strip.

71. The third question is whether the Council knew that Mr and Mrs Hancock acted in reliance on the belief that they owned the Disputed Land. The Council agreed (albeit not in writing to satisfy s.2 of the Law of Property (Miscellaneous Provisions) Act 1989 ) the new line of the boundary and that Mr and Mrs Hancock should have the land on their side of the fence. The Council knew that Mr and Mrs Hancock were paying half the cost of erecting the fence and they knew that Mr and Mrs Hancock believed the fence would mark the boundary between their land and that of the Council. The Council therefore knew that Mr and Mrs Hancock were incurring cost in reliance on the belief that the Disputed Land was theirs.

72. The Council having allowed Mr and Mrs Hancock to erect the fence along the line they believed to have been agreed with the Council, it would be unconscionable for the Council to deny that the boundary is along the line of the fence.

73. The next question is how is Mr Leysan affected by what happened between Mr and Mrs Hancock and the Council. Section 116 of the Land Registration Act 2002 declares that for the avoidance of doubt, in relation to registered land, both an equity by estoppel and a mere equity are interests which are capable of binding successors in title. Mr and Mrs Hancock had an equity by estoppel. The benefit of that equity passed to Mr Gowdy. As he was in actual occupation of the Disputed Land at the time of the purchase of 5 Bramley Road by Mr Leysan, Mr Leysan is bound by the equity.

74. I should then consider what remedy the court would give in the circumstances. The correct approach is set out in the judgment of Lord Briggs (with whom Lady Arden and Lady Rose agreed) in Guest v. Guest [2022] UKSC 27 . Lord Briggs said as follows “74. I consider that, in principle, the court’s normal approach should be as follows. The first stage …is to determine whether the promisor’s repudiation of his promise is, in the light of the promisor’s detrimental reliance upon it, unconscionable at all. It usually will be …

75. The second (remedy) stage will normally start with the assumption (not presumption) that the simplest way to remedy the unconscionability constituted by the repudiation is to hold the promisor to the promise.

76. If the promisor asserts and proves, the burden being on him for this purpose, that specific performance of the full promise, or monetary equivalent, would be out of all proportion to the cost of the detriment to the promisee, then the court may be constrained to limit the extent of the remedy …There is nothing in principle unjust in full enforcement of the promise being worth more than the costs of the detriment”.

75. In this case, I would consider the appropriate remedy to be the transfer of the Disputed Land to Mr Gowdy. Mr Leysan has not asserted and proved that the transfer of the land would be out of all proportion to the cost of the detriment suffered by Mr and Mrs Hancock.

76. The remaining question to be answered for the purposes of the first condition is whether the circumstances are such that Mr Gowdy ought to be registered as proprietor of the Disputed Land. I consider that they are because the appropriate remedy for the unconscionability is the transfer of the Disputed Land to Mr Gowdy. The Third Condition

77. The third condition is that (a) the land to which the application relates is adjacent to land belonging to the applicant (b) the exact line of the boundary between the two has not been determined under rules under section 60 of the Land Registration Act 2002 (c) for at least ten years of the period of adverse possession ending on the date of the application, the applicant (or any predecessor in title) reasonably believed that the land to which the application relates belonged to him and (d) the estate to which the application relates was registered more than one year prior.

78. The Disputed Land is adjacent to land belonging to Mr Gowdy and the boundary has not been determined under section 60 . The question then is whether Mr Gowdy and his predecessors in title for the period of ten years reasonably believed that the land belonged to them. Mr and Mrs Hancock believed that the land was theirs because the Council had agreed it should be theirs. I consider that belief to have been reasonable.

79. The evidence of Roger Hancock shows that the executors believed that the Disputed Land belonged to Mr Hancock on his death and thus that it was part of the property vested in them as executors. He understood from his parents that the Council had agreed the position of the fence erected by his father and paid for in part by the Council as the boundary and therefore that the Disputed Land was part of 6 Bramley Road. That belief was reasonable. Mr Leysan submitted that the executors’ answers to the questions 1.2, 1.3, 2.2, and 8.2 on the Law Society Property Information Form show that they did not believe they owned the Disputed Land. I do not accept that this conclusion is the correct one to be drawn from these answers. The answer to question 1.1 indicates the executors thought they owned the fence enclosing the Disputed Land into 6 Bramley Road. The answer to question 1.2 is consistent with the executors believing the Disputed Land belonged to them. Mr Roger Hancock believes the answer to question 1.3 was wrong but the answer given is consistent with the executors believing the Disputed Land belonged to them. The answers to questions 2.2 and 8.2 are also consistent with the executors believing that the Disputed Land belonged to them.

80. Mr Gowdy believed that the Disputed Land was part of 6 Bramley Road. That was reasonable. It was fenced in as part of the grounds of 6 Bramley Road and only accessible from 6 Bramley Road. Had he examined the title plan, he could reasonably have continued to believe that the Disputed Land was within the title because the title plan shows general boundaries only. Conclusions

81. Mr Gowdy was entitled to make the application on the date he made it, being 23 rd September 2024. I find his application succeeds because (1) Mr Gowdy and his predecessors in title have been in possession of the Disputed Land for a period in excess of ten years; and (2) the first and third conditions of paragraph 5 are met. I shall direct the Chief Land Registrar to give effect to the application of Mr Gowdy as if the objection of Mr Leysan thereto had not been made. Costs

82. The Tribunal has jurisdiction to make an order for costs in a land registration case under Rule 13 of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2003. Practice Direction 9 of the Property Chamber Land Registration Practice Directions provides that if the Tribunal exercises its jurisdiction to make an order for costs, it will usually order the unsuccessful party to pay the costs of the successful party. My preliminary view is that Mr Leysan should be ordered to pay Mr Gowdy’s costs to be assessed on the standard basis. Any party who wishes to submit that some different order should be made as to costs should serve written submissions on the Tribunal and on the other party by 4pm on 27 th March 2026. BY ORDER OF THE TRIBUNAL Judge Michael Michell DATED this 10 th March 2026 Re-dated on amendment under Rule 50 this 11 th March 2026